Following up on a my relatively-recent post about grand jury subpoenas for computer hardware and data, I want to talk a bit about a different kind of grand jury subpoena: a forthwith subpoena.

A forthwith grand jury subpoena looks pretty much like any grand jury subpoena and, like the “regular” grand jury subpoenas I discussed last time, is issued by a grand jury to obtain evidence the grand jury believes will be relevant to its investigation of federal criminal activity. A forthwith subpoena is a subpoena duces tecum, that is, it orders the recipient to produce physical evidence (files, guns, computer equipment, data, etc.) to the grand jury.

What is different about a forthwith subpoena lies not in the way it is issued or in what it commands the subpoena recipient to do. What is different is the time frame the recipient is given in which to comply with the subpoena’s demands. As its name suggests, a forthwith subpoena orders the recipient to product the evidence described in the subpoena “forthwith,” or immediately.

What does that mean in practice? Well, to understand what it means and why this is significant, let’s talk about what a normal, non-forthwith grand jury subpoena duces tecum requires of the recipient. A regular grand jury subpoena duces tecum will order the recipient to produce evidence to the grand jury on or before a specified date; it will give the subpoena recipient some time, which can vary between, say, one week to several weeks to comply with the subpoena’s demands. There are at least two reasons for giving the recipient a substantial amount of time to comply.

One is purely practical; if, say, a grand jury issues a subpoena to a company that orders it to produce its business records for the last two years, the company will need time to comply with the request. If the records, or some of them, are only available in hard copy, the company will need to copy those records and find out from the prosecutor if the grand jury will accept the copies or wants the originals. Either way, the company won’t want to give away its only copies of the records. It will do something similar for its electronic records, being sure to provide, and retain, a copy of them.

Another reason why recipients are given time to comply is that the subpoena may ask for records concerning particular events or transactions, often over a large time frame, and it will take some time for the business to identity the records that are, and are not, responsive to the subpoena. An attorney advising a company dealing with a subpoena like this will tell the company to be sure to provide every record that is responsive to the subpoena’s demands, but not to provide information that has not been asked for. The attorney will also tell the business to be sure to keep careful, precise track of what was, and was not, provided.

The other reason why subpoena duces tecum recipients are given time in which to comply with the subpoena is that they can, as I noted in my last post, challenge the subpoena by filing a motion to quash it. The motion to quash asks the court to void the subpoena for legal reasons, such as that producing what it asks for would violate the recipient’s Fifth Amendment rights or violate a valid privilege, like attorney-client or doctor-patient privilege. The subpoena recipient’s ability to challenge the validity of the subpoena before complying with it is an essential aspect of the due process of law; it ensures that people can have illegal or overbroad subpoenas quashed and, in so doing, protects our privacy and other civil rights.

Forthwith subpoenas eliminate this window of time to comply with the subpoena. As I noted above, a forthwith subpoena tells the person to comply “forthwith,” or immediately. Sometimes, that means the person must produce the evidence the day the subpoena is served or the day after it is served. Sometimes it means what it says. A few years ago, FBI agents served a forthwith subpoena on a law office in Detroit that ordered the lawyer to whom it was directed to “`forthwith, provide all requested items immediately to . . . the grand jury” by handing them over to the FBI agents.

A forthwith subpoena was used several years ago to obtain a laptop, in what I think is a cautionary tale on how one should deal with these subpoenas.

A federal grand jury in Connecticut was investigating possible racketeering and other criminal activity carried out by Triumph Capital Group, Inc., an investment firm with its principal place of business in Boston, certain of its officers and agents and certain state officers and employees. U.S. v. Triumph Capital Group, Inc., 211 F.R.D. 31 (D. Conn. 2002). According to the opinion, after the grand jury had subpoenaed records from the company, an informant told the FBI agent working with the grand jury, Charles Urso, that Triumph had not produced records that were relevant to the subpoena; according to the informant, Charles Spadoni, Triumph’s Vice President and General Counsel, said the records which had not bee produced needed to be “purged” and that he had bought a shredder program to purge or “blow out” data on a computer. U.S. v. Triumph Capital Group, Inc.,supra.

The informant didn’t know what computer or records, if any, Spadoni was talking about, so Urso did some checking. With the assistance of agents who were specially trained in computer forensics, Urso discovered that records which seemed responsive to the grand jury’s subpoena had not been produced; instead, they had been downloaded from the company’s computers into a laptop. All the FBI agents knew about this laptop was that it had existed and had been used primarily by Spadoni. U.S. v. Triumph Capital Group, Inc., supra. They were very concerned that Spadoni might have the laptop and might be intending to use the shredder program the informant mentioned to delete all the data it contained, which could obstruct the investigation.

So, they needed to get the laptop as soon as possible. The obvious thing would have been to get a search warrant for the laptop, because they clearly had probable cause to believe there was evidence of a crime on its hard drive. The problem lay in another aspect of the Fourth Amendment: It requires that any search warrant particularly describe the place to be searched and the thing(s) to be seized. They could describe the laptop itself with a fair degree of particularity, but they had no idea where it was. As far as they knew, if it still existed “it could be in Triumph's Boston office, its Hartford office, Spadoni's home, Spadoni's car, or the place where Spadoni stayed when he worked at Triumph's Boston office” or somewhere else. U.S. v. Triumph Capital Group, Inc., supra.

They could have had the grand jury issue a regular subpoena duces tecum for the laptop, but they were afraid that would give Spadoni (or whomever) time to destroy its contents. So, instead, on

April 11, 2000, [Agent] Urso appeared before the grand jury and requested a forthwith subpoena directing Triumph to produce the laptop computer by 4:30 p.m. that day. In support of his request, S.A. Urso told the grand jury that a forthwith subpoena was necessary because a real danger existed that more evidence, or even the laptop computer itself could be destroyed if Triumph had advance notice that the government wanted to search it.

U.S. v. Triumph Capital Group, Inc., supra.

The grand jury issued the forthwith subpoena and Nora Dannehy, an Assistant U.S. Attorney working with the grand jury served it on Triumph by handing it to Tracy Miner, a lawyer with the firm of Mintz, Levin and one of Triumph's attorneys. She was served while waiting outside the grand jury room with a Triumph employee who had been subpoenaed to testify that day. Ms. Miner was told Triumph should deliver the laptop “immediately.”

Ms. Miner . . . called Triumph's Hartford office and learned that neither Spadoni nor the laptop computer were there. She then called Spadoni's attorney and McCarthy and learned that the laptop computer was at Triumph's Boston office. She asked Triumph to deliver the laptop computer to Mintz Levin's Boston office.

Ms. Dannehy denied Ms. Miner's request for more time and instructed her to produce the laptop computer by 5:00 p.m. that day.

U.S. v. Triumph Capital Group, Inc., supra. After the laptop arrives at Mintz Levin’s office in Boston, it was given to a courier service to be delivered to the grand jury in Hartford. The courier service delivered it to agent Urso, in the federal courthouse, at approximately 4:45 p.m., fifteen minutes before the deadline. The FBI agents got a search warrant before they analyzed the contents of the laptop.

When the laptop was analyzed, federal agents found incriminating evidence they sought to use against Triumph Capital, Spadoni and a number of other people whom the grand jury had charged in a lengthy indictment. The defendants later moved to suppress the evidence found on the laptop arguing that (i) the use of the forthwith subpoena was improper and (ii) the procedure used to obtain custody of the laptop violated their Fourth and/or Fifth Amendment rights (for reasons I won’t go into).

Forthwith subpoenas are controversial because, as I noted above, they don’t conform to the usual reasonable-time-to-comply aspect of subpoenas duces tecum. As you saw at the beginning of this post, the U.S. Department of Justice recognizes that, and has adopted a policy that says they should be used “only when an immediate response is justified and then only with the prior approval of the United States Attorney.” U.S. Department of Justice, U.S. Attorney’s Manual section 9-11.140. The district court found that an immediate response was justified here, and the U.S. Attorney apparently approved the subpoena.

What about the constitutional claims? Well, the individual defendants might well have had viable claims under the Fourth and Fifth Amendments (corporations have no Fifth Amendment privilege against self-incrimination and a reduced level of protection under the Fourth Amendment) . . . but there was a problem. See, U.S. law says, with regard to constitutional protections, “use it or lose it.” In other words, raise your objection before you do anything – confess, hand over evidence in response to a subpoena – or you will be deemed to have waived your right to raise that constitutional objection.

And that is precisely what the district court held in this case. The court noted that Ms. Miner did not file a motion challenging the forthwith subpoena before complying, and that this was not due to any threats or coercion by the government. Instead, she and her client voluntarily complied with the subpoena. U.S. v. Triumph Capital Group, Inc., supra. At the suppression hearing, she said “she believed that it would be contemptuous to not comply with the subpoena and that she did not have sufficient time or opportunity to consult with her client or Spadoni's counsel to discuss what was on the laptop computer and prepare a motion before the 5:00 p.m. deadline.” U.S. v. Triumph Capital Group, Inc., supra. The district court pointed out that she was an “experienced” criminal defense attorney and, therefore, knew or should have known that by complying she waived her client’s right to raise certain objections.

The Sixth Circuit Court of Appeals reached the same result in that case I mentioned earlier, the one in which the forthwith subpoena was served on the lawyer at the law firm. He said pretty much what Ms. Miner said – that he didn’t know he could challenge the forthwith subpoena, since it required him to produce the evidence “immediately” to the FBI agents standing in the office.

That is why this is a cautionary tale: Should you ever receive a forthwith subpoena, for a computer or data or a television set or a gun or anything else, remember that if you comply instead of challenging the subpoena, you may well have given up the right ever to challenge the legality of that subpoena.